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In October, student-plaintiff Jonathan Lopez asked the Ninth Circuit Court of Appeals to reconsider its erroneous decision in Lopez v. Candaele. The federal appellate court, in a decision issued on September 17, had held that Lopez could not challenge the Los Angeles Community College District’s (LACCD’s) unconstitutional speech code because he did not suffer a concrete enough injury, even though he claimed that his speech was stifled by the code. In response to Lopez’s motion for rehearing, the Ninth Circuit amended its opinion last week. Unfortunately, the Ninth Circuit’s amended opinion wreaks further havoc upon the standing doctrine, making it more difficult for student-plaintiffs like Lopez to challenge unconstitutional speech policies.

The Lopez case is best known for its most shocking facts—in particular that, in response to Lopez delivering a speech touching on his religious views in a speech class, his professor refused to give him a grade. When Lopez asked for a grade, the professor told Lopez, "Ask God what your grade is." In 2009, a federal district court ruled that LACCD’s speech code, which prohibits, among other things, "actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men," unconstitutionally stifles core, political speech about issues related to gender.

The Ninth Circuit overturned the district court’s invalidation of LACCD’s speech code. However, the court of appeals did not hold that LACCD’s speech code is, in fact, constitutional. Instead, the Ninth Circuit did something potentially more detrimental to First Amendment rights at public universities. The court held that Lopez did not have standing even to bring his lawsuit.

The doctrine of standing, which requires plaintiffs to suffer a legally-recognized harm before they can seek relief in court, is significantly relaxed in First Amendment cases so that plaintiffs can vindicate their free speech rights—as well as those of others not before the court—without first risking punishment. Lopez alleged in his complaint that he suffered an injury because LACCD’s speech policies stifled his ability to speak about issues related to gender, sexuality, and religion. By holding that Lopez did not have standing because he did not possess a credible enough fear that he would be punished under LACCD’s policy, the Ninth Circuit significantly raised the bar for what is required to demonstrate standing.

Lopez then asked the full Ninth Circuit to reconsider its opinion, and FIRE weighed in with an amicus brief. We wrote that the Ninth Circuit’s ruling on standing conflicts with the Third Circuit’s decision in McCauley v. University of the Virgin Islands, where that court of appeals held that a student-plaintiff did have standing to bring suit to challenge provisions of the University of the Virgin Island’s (UVI’s) speech code under which his speech was never stifled. The Third Circuit held that McCauley, as a First Amendment plaintiff, should be held to relaxed standing requirements and allowed McCauley to challenge provisions of UVI’s unconstitutional speech policies on behalf of plaintiffs not before the court.

In response to Lopez’s motion for rehearing, the Ninth Circuit last week amended its opinion to distinguish McCauley. According to the Ninth Circuit, because McCauley was actually disciplined under one portion of UVI’s speech code, he did have standing to challenge other provisions of the speech code under which he was not disciplined. Lopez, in contrast, was never actually disciplined under any provision of LACCD’s speech code, so the Ninth Circuit believed that he did not have standing—even though he alleged all the reasons why he has a legitimate fear of being punished under the code in the future.

The Ninth Circuit’s distinction of McCauley fails to recognize the Third Circuit’s emphasis on how relaxed the standing requirement should be for First Amendment plaintiffs. The Third Circuit would have likely held that Lopez did suffer a concrete injury, after the incident with his professor and in light of his allegations that the speech code prevented him from sharing thoughts about his religion with other students. The Third Circuit would not have required Lopez to allege more. In fact, the Third Circuit specifically remarked that, in the standing context, McCauley should not be required to provide "lawyerly responses" because standing should be freely granted in First Amendment challenges.

Unfortunately for Lopez, he resides in California instead of the Virgin Islands. Hopefully, the other federal courts of appeals will follow the Third Circuit ruling in McCauley and grant students challenging speech codes the wide latitude they deserve to have their claims heard in court.